Damned if you do …

Doubts are growing about whether adjudication can deal with professional negligence claims, the reason being that it struggles to cope with expert witnesses

adjudication is now under scrutiny as it is being used for disputes for which it was not designed, and which are too complex for the process. My concern is that certain parties are using the opportunity to make adjudication more complex than it needs to be, and one problem area is adjudication claims against professionals.

The problem with using adjudication to pursue this group is that a consultant's performance is judged against the standard of a reasonably competent professional of the same discipline. In court, this translates into a need to have an expert opinion that the professional was in breach of duty or negligent.

Expert evidence is unique in law, as the expert in question is allowed to give opinions as evidence – a normal witness would only give factual evidence.

In the 20th century, expert evidence grew to be a small industry in its own right, but by the late 1990s Lord Woolf considered that the whole process was out of hand. He proposed that when expert evidence was needed, a sole court expert ought to be appointed. This reform was introduced in 1998.

However, the expert witness issue is coming to the fore once again in adjudication claims against professionals. I, and no doubt others, have had experience of those who represent such professionals – invariably backed by professional indemnity insurers. Typically, they assert that an adjudicator cannot possibly decide a negligence claim against their client without the benefit of expert evidence. If this argument was widely accepted, it could limit the use of adjudication in claims against professionals.

And it leads to a dilemma. If expert evidence is provided then the adjudicator is likely to be subject to arguments that there is no dispute or jurisdiction because the responding party has not had a proper opportunity to review and consider the detailed expert evidence prepared for the referring party.

It is unclear if an adjudicator is bound to have expert evidence to support a professional negligence finding

The referring party may appear to have the advantage of time to obtain an expert evidence, but nothing is that simple. Such a tactical advantage opens the way for respondent arguments of ambush, procedural unfairness and too much complexity to be suitable for adjudication.

The other horn of the dilemma is that if expert evidence is not presented to support the referring party's case, it will be said that the adjudicator is in no position to determine whether the professional in question has really been negligent. In the absence of such expert opinion, the responding party will say that the referring party's case must fail.

One advantage of adjudication was the idea that adjudicators would be experienced industry people able to determine disputes on a provisional basis using their knowledge and experience. But the act itself does not make clear how such experience is to be used, or whether an adjudicator is bound to have expert evidence to support a professional negligence finding.

As the act does not resolve this issue then the courts may be required to. The courts, though, have made clear that their function is not to act as an appeal court to decide whether or not the adjudicator's decision was in fact correct. There are only limited grounds on which an adjudicator's decision can be set aside. So, criticism of such a decision may amount to saying that the adjudicator got it wrong, but this is not grounds for resisting enforcement. It may be easier to challenge a decision where the referring party has relied on expert evidence on grounds of ambush and procedural unfairness.

Postscript

James Bessey is a partner specialising in construction dispute resolution at Hammonds, Birmingham